No Doubt the First Lawsuit of Many

Billy James Smith spent almost 20 years in prison for a crime he did not commit. Now, he wants the city to make it right.

This morning Billy James Smith became the first man exonerated through DNA evidence to file a federal civil rights and malicious prosecution lawsuit against the City of Dallas police department. Smith, 55, spent 19 years and 11 months in prison for a rape he did not commit. He was released a year ago after a DNA test on semen left by the rapist proved Smith was innocent.

“It is only a matter of time that the City of Dallas will have to answer for its unprecedented rate of wrongful convictions,” Smith’s attorney, Lubbock-based Kevin Glasheen, tells Unfair Park. Smith was featured in the Dallas Observer’s recent cover story on wrongful convictions.

Smith’s lawsuit accuses Dallas police officers of conducting an “illegally suggestive identification procedure” by pulling Smith from his apartment the morning of August 7, 1986, to be identified by the victim and arrested. It also alleges police performed an illegal search to obtain clothes similar to those worn by the attacker, and that one officer perjured himself while testifying at Smith’s trial.

Smith told the Observer he requested investigators put him in lineup and take blood and hair samples. The lawsuit alleges that detectives ignored his requests and made no attempt to determine if the physical evidence matched Smith.

In addition, it claims that when Smith asked for a polygraph test, the officers told him he could have a polygraph or a lawyer, but not both. After continuing to ask for an attorney, Smith alleges, he was put in a jail cell and not provided with an attorney until after a fellow inmate helped him write a letter to the court.

Smith says that his first attorney, Jerry Birdwell, requested blood and hair samples and subpoenaed two witnesses. But on the day that Smith was to be taken to Parkland to give samples, Birdwell told him no officer was available to take him; the samples were not obtained and compared to the physical evidence from the victim. Birdwell then resigned from the case.

Smith alleges that his second defense attorney, Howard Wilson, who now lives in Georgetown, Texas, conspired with Dallas prosecutors by refusing to investigate his claim of innocence or interview his witnesses. Smith says he didn’t meet Wilson until the day of the trial and that Wilson sent one of his alibi witnesses home without putting him on the stand. Wilson went to work for the Dallas County District Attorney's office not long after Smith’s conviction. Reached at his home, Wilson said he did not remember the case and has not yet been served with a copy of the lawsuit.

In August 2001, Smith’s request for a DNA test was opposed by the district attorney’s office and denied by then-Judge Manny Alvarez. The lawsuit says that the Court of Criminal Appeals determined that Alvarez abused his discretion and sent the case back to the trial court to order testing. All charges against Smith were dismissed in December 2006 based on his actual innocence.

Nothing can truly compensate for the years of his life spent in prison, says Smith. But filing the lawsuit gives his loss meaning.

“In 1987 when I was on trial the district attorneys had their day in court,” Smith says. “This will assure me that, in the end, I will have my day in court. Doing this makes it seem meaningful, that what happened wasn’t in vain. It let’s people know that I’m innocent of this lie that was lodged against me.”

Exonerees have a choice of taking a settlement from the state based on the number of years they were incarcerated or filing suit. The compensation was recently increased from $25,000 a year to $50,000 a year, effective September 1. (It goes to $100,000 a year for people sentenced to Death Row who are later exonerated.) The change also removed the $500,000 maximum.

But Chris Moore, one of Smith’s attorneys, says that Smith should still receive compensation as well. “Once you get the statutory compensation, the law says you can’t bring a lawsuit,” Moore says. “But according to the law now, that’s only if you get the statutory compensation first. We’ve got two years of statute of limitations on the lawsuit and three on the compensation issue.”

Glasheen says that his office represents three additional exonerees, also featured in the Observer’s story: Gregory Wallis, who was sentenced to 50 years for a 1988 sexual assault and did nearly 18 years in prison before his exoneration; James Waller, convicted in 1983 and pardoned by Governor Rick Perry this March; and Andrew Gossett who spent seven years in prison for a 2000 sexual assault he did not commit. --Glenna Whitley